IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

:

TYRA COLEMAN et al., : CIVIL ACTION

: NO. 05-4506

Plaintiffs, :

:

v. :

:

BLOCKBUSTER, INC. :

:

Defendant. :

:

M E M O R A N D U M

EDUARDO C. ROBRENO, J. NOVEMBER 15, 2007

 Before the Court is Plaintiffs’ fifth motion to compel

(doc. no. 96, as amended by doc. no. 103). The motion will be

denied with the limited exception that the response to

Interrogatory Number 45 shall be supplemented.

I. BACKGROUND

This is an employment discrimination action brought by

former African-American employees of Blockbuster, Inc. The Court

has addressed discovery issues in this case on numerous

occasions: first at a hearing on June 14, 2006 and then, again,

at a hearing on October 11, 2006, after which the Court issued an

opinion discussing how the parties should proceed. Coleman et

al. v. Blockbuster, Inc., 238 F.R.D. 167, 170 (E.D. Pa. 2006)

(describing the “still-festering discovery disputes”). The facts

of the case and the plaintiffs’ theory of recovery are described

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in the Court’s previous memorandum. See id.

On May 11, 2007, the Court entered an order granting in

part and denying in part the fourth motion to compel filed by

Plaintiffs (doc. no. 94). The Court also entered a Third Amended

Scheduling Order that set a deadline of July 11, 2007 for both

discovery and the filing of any motions for summary judgment

(doc. no. 95).

On July 10, 2007, Plaintiffs filed their fifth motion

to compel. This motion argues that Defendant has not complied

with the Court’s May 11 Order. A hearing was originally

scheduled for August 15, 2007 to consider the Plaintiffs’ fifth

motion to compel. It was continued six times to allow the

parties an opportunity to consider settlement. Their efforts did

not bear fruit.

Defendant filed for summary judgment on July 11, 2007

(doc. no. 97). Pretrial deadlines, as well as the deadline for

plaintiffs’ opposition to summary judgment, have been suspended

until further order of the Court. Deadlines in the related case,

Wilson v. Blockbuster, 06-1566, have also been suspended pending

the outcome of the discovery dispute in Coleman.

II. DISCUSSION

Plaintiffs argue that Defendant has not complied with

the Court’s order of May 11, 2007. Plaintiffs’ individual

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arguments are addressed below, but the Court’s conclusions can be

summarized as follows. First, Plaintiffs are not entitled to

sanctions. Second, Plaintiffs’ arguments regarding Blockbuster’s

production of employment statistics are largely without merit -

an analysis of the individual interrogatories propounded by

Plaintiff reveals that Blockbuster has complied with the vast

majority of Plaintiffs’ discovery requests. Third, although it

is not apparent to the Court that Defendant is responsible for

the delays in deposing certain witnesses, Plaintiffs will be

granted 30 days to depose Cari-Ann Urbanek, Russell Miller and

Defendant’s 30(b)(6) witness(es).

A. Sanctions

Plaintiffs ask for sanctions against Defendant. 

Defendant has substantially complied with the Court’s order of

May 11; therefore, sanctions are not warranted.

B. Employment Statistics

The bulk of Plaintiffs’ motion deals with Defendant’s

production of employment statistics that Plaintiffs believe will

show racial disparities in Blockbuster’s employment practices. 

In its previous orders, the Court held such information to be

“clearly relevant and discoverable.” Coleman, 238 F.R.D. at 171;

Order (doc. no. 94) at 3, May 11, 2007 (“5/11/07 Order”).

On June 12, 2007, Plaintiffs received a compact disc

Case 2:05-cv-04506-ER Document 124 Filed 11/16/07 Page 3 of 15
Blockbuster produced the employment data in response to 1

interrogatories pursuant to Federal Rule of Civil Procedure

33(b).

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(“CD”) from Blockbuster that purportedly contained the statistics

that Plaintiffs sought. Plaintiffs argue that there are

deficiencies in the information provided on the CD. Most of the

arguments turn on the fact that Defendant has provided

information from its database, but not in the format that

Plaintiffs want. Federal Rule of Civil Procedure 34(b) provides

that, unless the Court orders otherwise, a party “producing

electronically stored information,” which is what Blockbuster is

doing here, “must produce the information in a form or forms in

which it is ordinarily maintained or in a form or forms that are

reasonably usable.” F.R.C.P. 34(b)(ii). It appears that

Blockbuster has complied with this requirement. Therefore, 1

Plaintiffs’ objections to the format of the production are

unavailing.

1. Definition of Relevant Districts

Blockbuster provided information regarding stores

within the “Relevant Districts.” Plaintiffs argue that it is

unclear what the “Relevant Districts” are. This is simply not

true. The Court’s order compelling Blockbuster to provide

employment statistics clearly defines that phrase to include

“stores owned and/or operated within the districts that

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Plaintiffs and/or District Manager Cari-Ann Urbanek worked.” See

5/11/07 Order at 2.

2. Relevant Time Period

Plaintiffs also argue that it is unclear what the time

period is for the information that was provided. This is also

untrue. Plaintiffs’ interrogatories themselves specify that the

relevant time period is “from 2002 through 2006.”

3. Specific Interrogatories

Plaintiffs’ complaints about Blockbuster’s responses to

specific interrogatories are evaluated below.

a. Interrogatory 2

Blockbuster has complied by providing the number and

location of every store within the Relevant Districts.

b. Interrogatory 3

Blockbuster has adequately responded to this

interrogatory by providing the names of the employees who worked

for each store and each employee’s position and race. The data

is not provided in the precise format that Plaintiffs desire, but

Blockbuster explains that this is because Blockbuster itself does

not keep the data in such a format. Blockbuster provided the

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data, however, on spreadsheets that Plaintiffs can manipulate to

arrange the data in the format that they desire and make whatever

inferences that they may.

To the extent Plaintiffs could not understand the data,

Blockbuster has offered to conference with them to explain it.

c. Interrogatory 5

This interrogatory asked Blockbuster to explain why it

closed stores within the Relevant Districts. The Court ruled

that “[i]f responses to Interrogatories 3 and 4 tend to show a

pattern of Blockbuster closing down stores with a higher

proportion of African-American employees, Plaintiffs may request

leave to take additional discovery regarding the closing or

relocation of stores.” Plaintiffs now seek leave for additional

discovery. This request will be denied because Plaintiffs have

not established a pattern of discrimination using the discovery

that they have already received.

d. Interrogatory 6

Blockbuster represents that it complied with this

interrogatory by identifying individuals who served as managers

in the relevant districts in a letter dated June 11, 2007. The

information is also available in the “Job History” section of

Blockbuster’s “Employee Data” spreadsheet.

Case 2:05-cv-04506-ER Document 124 Filed 11/16/07 Page 6 of 15
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e. Interrogatory 7

Blockbuster has adequately responded to this

interrogatory. It provided a spreadsheet that lists 16 stores

that participated in a Niche Marketing program that included an

African-American marketing and sales promotion module at any time

between January 1, 2002 and January 1, 2006. The store numbers

are found in a separate spreadsheet. Finally, the name, title,

race, and wages of each employee that worked in the stores are

also available.

f. Interrogatory 8

Blockbuster has adequately responded to this

interrogatory by providing the positions of all employees within

the Relevant District. Reviewing this information would allow

Plaintiffs to compile a complete list of all the managers.

g. Interrogatory 9

Blockbuster has also provided information sufficient to

comply with this interrogatory. Again, it just takes some work

on the part of Plaintiffs to organize the data in the manner that

they desire. For example, a quick search shows that Wendy

Smallwood was transferred three times in the relevant period. 

Each time she was transferred, she was transferred to a store

that participated in Niche Marketing: 

Case 2:05-cv-04506-ER Document 124 Filed 11/16/07 Page 7 of 15
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Date Store Store Address Niche Marketing

01/01/2002 92806 6000 North Broad Yes

01/14/2002 42218 2900 North Broad Yes

03/04/2002 42044 575 Adams Avenue Yes

08/26/2002 42218 2900 North Broad Yes

h. Interrogatory 10

Blockbuster adequately responded to this interrogatory. 

All the requested information has been provided, including which

employees worked for Niche Marketing stores.

i. Interrogatory 13

Blockbuster adequately responded to this interrogatory. 

All the requested information has been provided. Blockbuster has

provided Plaintiffs a list of all the stores that Ms. Urbanek

managed. Based on this list and the spreadsheets, Plaintiffs can

identify the individuals who reported to Ms. Urbanek, as well as

their race.

j. Interrogatory 14

Blockbuster adequately responded to this interrogatory. 

k. Interrogatory 18

Blockbuster adequately responded to this interrogatory. 

Plaintiffs can readily determine who received management training

by looking at the employee positions history. The “Job History”

Case 2:05-cv-04506-ER Document 124 Filed 11/16/07 Page 8 of 15
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spreadsheet identifies employees who spent time as Management

Trainees. 

l. Interrogatory 19

The Court previously refused to compel Defendant to

respond to this interrogatory, but noted that further discovery

might be warranted if Plaintiff could establish a discriminatory

pattern. Plaintiffs have not established such a pattern,

therefore, Defendants will not be compelled to respond to

Interrogatory 19.

m. Interrogatory 20

Blockbuster adequately responded to this interrogatory. 

It stated that it does not have any responsive information.

n. Interrogatory 23

Blockbuster adequately responded to this interrogatory. 

o. Interrogatory 27

The Court did not compel Blockbuster to answer this

interrogatory in its previous orders. Further discovery is not

warranted because Plaintiffs have not shown that Blockbuster’s

previous responses were incomplete.

Case 2:05-cv-04506-ER Document 124 Filed 11/16/07 Page 9 of 15
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p. Interrogatory 28

The Court did not compel Blockbuster to answer this

interrogatory. Further discovery is not warranted because

Plaintiffs still have not shown how Blockbuster’s method of

maintaining data on its employees is relevant to Plaintiffs’

claims in this case.

q. Interrogatory 45

In oral argument, defense counsel stated that Defendant

has made a complete response to this interrogatory. It is true

that Plaintiff was provided with a list of stores entitled

“Marketing Module Programs,” however, the list does not specify

which marketing module each store was part of. Defendant shall

identify for Plaintiff the marketing module to which each store

belonged. If the list already provided by Defendant contained

only those stores belonging to the African-American marketing

module, Defendant shall supplement its response by disclosing the

other marketing modules based on racial or ethnic classifications

that existed during the relevant time period, and the stores that

belonged to those modules during the relevant time period. See

5/11/07 Order at 17-18.

r. Interrogatory 54

Blockbuster adequately responded to this interrogatory. 

Case 2:05-cv-04506-ER Document 124 Filed 11/16/07 Page 10 of 15
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s. Interrogatory 55

Blockbuster adequately responded to this interrogatory. 

Defense counsel reaffirmed in oral argument today that no

statements responsive to Interrogatory 55 have been withheld on

privilege grounds. Thus, there is nothing further to disclose to

Plaintiffs.

t. Interrogatory 56

The Court did not compel Blockbuster to answer this

interrogatory because the information sought was provided in

response to other interrogatories.

u. Interrogatory 57

Blockbuster adequately responded to this interrogatory. 

From the information provided, Plaintiffs can determine which

store managers reported to Ms. Urbanek, which sales managers

(assistant store managers) reported to those store managers, and

which customer representatives reported to which store and sales

managers.

C. Depositions

The parties have been bickering about the exact dates

for depositions for over a year. The depositions shall proceed

as follows: 

Case 2:05-cv-04506-ER Document 124 Filed 11/16/07 Page 11 of 15
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1. Ms. Urbanek

Plaintiffs shall depose Ms. Urbanek in the Philadelphia

area by Friday, December 14, 2007. The scope of the deposition

will encompass the subject matters relevant to Coleman v.

Blockbuster or to Wilson v. Blocbuster.

2. 30(b)(6) Deponents

Plaintiffs shall depose Blockbuster’s 30(b)(6)

witness(es) at Blockbuster’s headquarters in the Dallas area by

Friday, December 14, 2007. The scope of the deposition will

encompass only subject matter relevant to Coleman v. Blockbuster.

3. Russell Miller

Russell Miller submitted a declaration in Coleman v.

Blockbuster regarding the production of data to Plaintiffs. For

the reasons stated on the record, Plaintiffs shall depose Miller

in the Philadelphia area by Friday, December 14, 2007. The scope

of the deposition will encompass only the subject matter of the

affidavit.

III. CONCLUSION

For the reasons stated above, the fifth motion to

compel (doc. no. 96) will be denied, except as to Interrogatory

Case 2:05-cv-04506-ER Document 124 Filed 11/16/07 Page 12 of 15
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45 and the three depositions described above. Accordingly,

Defendant shall supplement its response to Interrogatory 45 by

Friday, December 14, 2007. Plaintiffs shall depose Urbanek,

Miller and Defendant’s 30(b)(6) witness(es) by Friday, December

14, 2007. Plaintiffs shall file a response to Defendant’s motion

for summary judgment by Monday, January 14, 2008.

An appropriate order shall issue.

Case 2:05-cv-04506-ER Document 124 Filed 11/16/07 Page 13 of 15
Because of the contentious relationship between the 2

parties, the Court has decided to make itself available to

resolve any disputes that may arise during the course of these

three depositions. Therefore, Plaintiffs’ counsel shall notify

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

:

TYRA COLEMAN et al., : CIVIL ACTION

: NO. 05-4506

Plaintiffs, :

:

v. :

:

BLOCKBUSTER, INC. :

:

Defendant. :

:

ORDER

AND NOW, this 15th day of November 2007, it is hereby

ORDERED that Plaintiffs’ fifth motion to compel (doc. nos. 96 &

103) is DENIED except that Defendant shall supplement its

response to Interrogatory No. 45 by Friday, December 14, 2007.

It is further ORDERED that Plaintiffs shall depose

Cari-Ann Urbanek in the Philadelphia area regarding the subject

matter of this case or of Wilson v. Blockbuster, 06-cv-1566, by

Friday, December 14, 2007. Plaintiffs shall depose Russell

Miller in the Philadelphia area regarding the subject matter of

the declaration he submitted in this case by Friday, December 14,

2007. Plaintiffs shall depose Defendant’s 30(b)(6) witness(es)

in the Dallas area regarding the subject matter of this case only

by Friday, December 14, 2007.

2

Case 2:05-cv-04506-ER Document 124 Filed 11/16/07 Page 14 of 15
the Court of the date and time of each deposition at least three

days prior to the deposition.

It is further ORDERED that Plaintiff shall respond to

Defendant’s motion for summary judgment by Monday, January 14,

2008.

AND IT IS SO ORDERED.

 S/Eduardo C. Robreno 

EDUARDO C. ROBRENO, J.

Case 2:05-cv-04506-ER Document 124 Filed 11/16/07 Page 15 of 15